For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
The defendant was found guilty by a jury of the crime of robbery while armed. The Appellate Division affirmed his conviction. State v. DiModica, 73 N.J. Super. 1 (App. Div. 1962). We granted the defendant's petition for certification. 38 N.J. 360 (1962).
The facts of the robbery are not in dispute except with respect to the identity of the robber. On the night of September 6, 1958, after closing hours, Donald Griffith, Anthony Belenski and Melvin Byers, employees of the Good Deal Supermarket in West Orange, were inside the store's "courtesy booth" counting the day's receipts when a lone intruder vaulted the railing of the booth and, brandishing a pistol, ordered them to lie on the floor. The employees complied. After obtaining several thousand dollars from the store's safe, which was not locked, the gunman marched the employees downstairs to the cellar and then fled. Immediately after the robbery, each of the employees gave his description of the robber to the police. In April 1960, as a result of information
received by the West Orange police, Griffith and Belenski separately viewed a lineup at State's Prison in Trenton, where the defendant was incarcerated for another crime. After seeing the defendant in the lineup, each identified him as the robber.
At the trial, all three robbery victims positively identified the defendant as the armed man who had robbed them. The defense was that of alibi. Thus, the basic issue submitted to the jury was whether the defendant was the robber. As mentioned above, the jury found the defendant guilty.
On the defendant's appeal to the Appellate Division, one of his principal contentions was that the trial court erred in denying him access to the grand jury testimony of the witness Griffith. It appears that shortly after commencing his cross-examination of Griffith, the State's first witness, defense counsel asked him whether he had testified before the grand jury. Upon learning that Griffith had so testified, counsel applied to the court for a transcript of Griffith's grand jury testimony so that he might explore all possibilities of inconsistency between Griffith's prior testimony and the evidence he gave at the trial. The trial court denied the application on the ground that there was nothing to indicate that the witness had contradicted himself. In rejecting the defendant's contention, the Appellate Division said:
"Here, defendant does not claim or even suggest that there is a variance between Griffith's testimony before the Grand Jury and at trial. Defendant merely wants to explore the possibility. This, without more, does not establish a right to the testimony." 73 N.J. Super., at p. 7.
In addition, the court said that the application was tardy since it was not made until defense counsel was actually cross-examining Griffith and, in any event, it had not been shown that a transcript was available at the trial or even that the grand jury testimony had been transcribed. The court held that the granting or denial of an application to inspect grand jury testimony is within the sound discretion of the trial
court and that in view of the circumstances mentioned above, the trial court's ruling was not an abuse of discretion. Ibid.
In granting the defendant's petition for certification, we directed the trial court to take testimony regarding whether a stenographic record of the testimony of the witnesses before the grand jury had in fact been taken. On the remand, the inquiry disclosed that no stenographer was present at the grand jury proceedings in question, and hence no record of Griffith's testimony exists. The trial court's denial of the defendant's application, therefore, even if erroneous, cannot be considered harmful. Nevertheless, in view ...